Mistrial: Understanding the Bill Cosby Sexual Assault Trial

Just recently we discussed the serious criminal allegations of sexual assault leveled against famous comedian Bill Cosby. The accusations, factually mirroring the allegations of dozens of other women, have drawn an enormous amount of attention after Cosby’s admission during a deposition of having sex with women after drugging them with Quaaludes. The details of the suit, dealing with the charges of one Ms. Andrea Constand, are something we have discussed in full before. However, the results of the trial were made public just last week–a hung jury and a mistrial.

A hung jury occurs when the jurors in a case are incapable of reaching an agreement as to whether the accused is guilty or not guilty. In a criminal trial, a jury’s decision must unanimously determine that a party is guilty beyond a reasonable doubt in order to reach a guilty verdict. When the jury can’t reach a unanimous verdict, even if it is only one juror in disagreement, the result is considered a hung jury and the judge is generally required to declare the trial a mistrial.

The Jury’s Deliberations

After six days of deliberating on their verdict the jury in Mr. Cosby’s trial were unable to reach agreement as to their final decision. Ultimately, this came down to disagreement over the definition as to the meaning of terms under the law. Especially the meanings of “unconscious,” “without her knowledge,” and “reasonable doubt.” The jurors also apparently had some questions about whether the sexual acts were consensual and especially whether Ms Constaand was too impaired to consent for the entirety of the act.

The criminal evidentiary standard of beyond a reasonable doubt is intentionally, and rightfully, an extremely high standard of proof. Any real doubt whatsoever as to any of the elements required to prove the allegations against Mr. Cosby would require a juror to find him not guilty.

While the evidence against Mr. Cosby in this case is substantial, consent is a notoriously tricky thing to get a jury to determine as we’ve discussed in the past. Whether this is a product of culture or the fact-specific nature of the determination, it only takes a reasonable doubt as to consent to leave a juror with a not guilty verdict. Mr. Cosby’s attorneys worked very hard to create this doubt by pointing to previous encounters between the two-focusing on disputed encounters including  fifteen minutes of clothed “cuddling” in a hotel room, conversations after the alleged assault (72 phone calls which Ms. Constand describes as a necessary part of her job due to Mr. Cosby’s position of power at the University she worked for).

The admitted actions of Mr. Cosby are heinous, a man in a position of power admittedly drugging and having sexual encounters with a woman whose job he holds considerable control over is simply unacceptable. However, in a criminal context the specific minutiae of an encounter can come into play for a juror in splitting definitional hairs in creating a reasonable doubt. It sounds like this, as it often does in the context of sexual assault and rape trials, is what occurred here.

Will Cosby Be Retried?

A hung jury and a mistrial is not a guilty or a not guilty result. However, the situation has always created a bit of a constitutional kerfuffle when it comes to double jeopardy-your right not to be put on trial twice for the same crime.

The Supreme Court has held that jeopardy attaches as soon as a jury is impaneled. In other words, once the jury is sworn in you’ve faced jeopardy on the issue once regardless of the result.

However, despite this, the Supreme Court has held since 1824 that mistrials are the exception to this rule. They’ve doubled down on this position a number of times since. In recen                t years, they’ve done so as recently as 2010. Thus, the mistrial remains as an odd constitutional exception to the usual rules of double jeopardy and Mr. Cosby can still face trial on these sexual assault charges again.

In fact, Mr. Cosby not only can face charges again but he absolutely will face these sexual assault charges once more. Hung jury verdicts are generally considered wins for a defendant in criminal litigation as they are not a guilty verdict and give defense attorney’s a more practiced crack at the case. However, the prosecutors in this case have already begun preparations for a retrial of Mr. Cosby. What’s more, they have said that they have learned from this first trial and will focus on removing the ambiguity that led to this first mistrial. This will all take time though and we’ll have to wait and see how this second trial will unfold for Mr. Cosby.